IN THE CASE OF:	

		BOARD DATE:	  April 9, 2009

		DOCKET NUMBER:  AR20080019324 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction to the records of her deceased father, a former service member (FSM), to show award of the Purple Heart with first oak leaf cluster.

2.  The applicant states, in effect, that the FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) should show award of the Purple Heart with first oak leaf cluster.  

3.  In support of her application, the applicant provides copies of the FSM's DD Form 214; his National Archives Form 13038 (Certification of Military Service); his Veterans Administration Form10-1000 (Discharge Summary (Inpatient Care)); his Certificate of Death; and a letter from U.S. Army TACOM, Integrated Logistics Support Center (ILSC), Clothing and Heraldry Product Support Integration Directorate, Philadelphia, Pennsylvania, indicating shipment of awards.   

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 

provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the FSM’s records were destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The FSM's available records show that he was inducted into the Army of the United States, in pay grade E-1, on 27 October 1950.  He completed training in military occupational specialty (MOS) 1745 (Light Weapons Infantryman).

4.  Item 28 (Most Significant Duty Assignment) of the FSM's DD Form 214 shows he was assigned to Company M, 39th Infantry Regiment.  This unit was assigned to the 9th Infantry Division.

5.  The FSM was honorably released from active duty, in the rank of sergeant first class (SFC)/pay grade E-6, on 28 July 1952, prior to the expiration of his term of service.  He was transferred to the Enlisted Reserve Corps to complete his remaining Reserve obligation.

6.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 show the Combat Infantryman Badge, Korean Service Medal with one bronze service star, United Nations Service Medal, and the Army of Occupation Medal with Japan Clasp.  No Purple Hearts are listed.

7.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) of the FSM's DD Form 214 shows the following entries:  Shrapnel Wound, Left Buttock, 26 June 1951, Chippori, Korea; and Shrapnel Wound, Left Knee, 13 October 1951, North Korea.

8.  The Korean War Casualty List shows the FSM was wounded on 26 June and 13 October 1951.



9.  The applicant submits a copy of a letter from the TACOM, ILSC, Clothing and Heraldry Product Support Integration Directorate, Philadelphia.  The letter advised the FSM of his request number and that the following awards were being shipped to him:  Purple Heart with first oak leaf cluster bronze large; Army of Occupation Medal with Japan Clasp; Korean Service Medal with one bronze service star; Combat Infantryman Badge; and the United Nations Service Medal.   
10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22, also states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

12.  Army Regulation 600-8-22 further provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 to a date to be determined.

13.  Army Regulation 600-8-22 states that the Republic of Korea War Service Medal (ROKWSM) is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1954.  The service prescribed must have been performed as follows:

   a.  while on permanent assignment;

   b.  while on temporary duty within the territorial limits of Korea or on waters immediately adjacent thereto for 30 consecutive days or 60 nonconsecutive days; or 

   c.  while as crew members of aircraft, in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's DD Form 214, dated 28 July 1952, does not show entitlement to any Purple Hearts.  There are no general orders in the available records that show he was awarded any Purple Hearts.  However, 
the available evidence does show he sustained a shrapnel wound to his left buttock on 26 June 1951 while serving in Chippori, Korea, as a result of hostile action.  The FSM also sustained a shrapnel wound to his left knee on 13 October 1951, while serving in North Korea, as a result of hostile action.  Despite the lack of general orders awarding the FSM the Purple Heart with first oak leaf cluster to signify two awards of the Purple Heart, the evidence shows he is qualified for these awards for wounds received as a result of hostile action on 26 June 1951 and 13 October 1951.  Therefore, the FSM is entitled to award of the Purple Heart with first oak leaf cluster and to have these awards added to the FSM's DD Form 214.  

2.  The available evidence also shows that the FSM completed a qualifying period of service for award of the National Defense Service Medal.  Therefore, the National Defense Service Medal should also be added to the FSM's DD Form 214.

3.  The available evidence further shows the FSM met the criteria for award of the ROKWSM.  Therefore, the ROKWSM should also be added to the FSM's DD Form 214.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  awarding the FSM the Purple Heart with first oak leaf cluster, for wounds received as a result of hostile action in Korea on 26 June 1951 and 13 October 1951;
   b.  adding to item 27 of the FSM's DD Form 214 the Purple Heart with first oak leaf cluster, National Defense Service Medal, and the Republic of Korea War Service Medal; and
   
   c.  providing the applicant a corrected separation document that includes these awards.



      __________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080019324



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ABCMR Record of Proceedings (cont)                                         AR20080019324



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